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Reaction to Google Book Search Settlement

Updated 10/30, 7:53 AM — Publishing experts, bloggers and interested parties are weighing in on the Google Book Search settlement. I’ll be updating this post as new material comes in. If you see something that deserves notice please post a comment:

The hard question for the registry is how far they will go to support the range of business models that authors and publishers might have. E.g., Yale Press “Books Unbound” and Bloomsbury Academic both have Creative Commons licensed authors. Will the registry enable that fact to be recognized? Indeed, though the comment was made by someone from the plaintiffs’ side that it would be “perverse” for authors to choose free licensing, it is perfectly plausible that an author would choose to make his or her work available freely electronically, but contract with one commercial publisher to deal with selling the physical book, or licensing rights commercially. That, again, is the Bloomsbury Academic business model. Ideally, this non-profit should encourage the widest range of rights-respecting business models. One clear signal about what kind of organization this is will come from this.

From the beginning, this has seemed to be a major example of corporate welfare. Libraries at public universities all over this country (including the one that employs me) have spent many billions of dollars collecting these books. Now they are just giving away access to one company that is cornering the market on on-line access. They did this without concern for user confidentiality, preservation, image quality, search prowess, metadata standards, or long-term sustainability. They chose the expedient way rather than the best way to build and extend their collections.

… it’s quite upsetting to see Google cave on this. The settlement does not establish any sort of precedent on the legality of creating such an index of books, and, if anything pushes things in the other direction, saying that authors and publishers now have the right to determine what innovations there can be when it comes to archiving and indexing works of content. Unfortunately, this was really inevitable. As was the case with Google caving on YouTube and the Associated Press, it becomes a situation where Google realizes it can throw a little cash at the problem to make it go away — while also creating a large barrier to entry for any more innovative startup. From a short-term business perspective this might make sense, but from a long-term business perspective (and wider cultural perspective) it’s terrible.

But while the legal landscape isn’t altered too much by the settlement, the practical landscape could be. Rightsholders and other potential plaintiffs might view this settlement as the model for all future relationships with digitization efforts–if Google pays for digitizing, why shouldn’t everyone else? Such a landscape might make a plaintiff more likely to sue, although the results in court, ideally, shouldn’t differ, with or without this settlement in place.

Going forward, people will buy books they want online and libraries will pay for access. Who gets 37 percent of the revenue? Google. Plus, there’s advertising revenue and Google gets the same percentage of that. So for $125 million, it’s probably nailed down many, many times more future revenue. This will turn out to be a pretty cheap business acquisition for them.

The issue is that this is a class-action settlement requiring judicial approval to bind all authors. It’s practically impossible for anyone else to take advantage of Google’s terms without filing suit to obtain a similar class-binding order. Individual license negotiation — the route that Google considered and rejected when it started the project — is utterly infeasible. Since voluntary negotiation can’t produce the result one needs to do comprehensive indexing, there’s still no market for it, and this settlement therefore shouldn’t prejudice future fair use claims by search engines.

It continues to baffle me that it took approximately three years of litigation to get this far. That’s three years of lost gains and potential lost revenues. Makes my head hurt to think that so much time was wasted. Recall, if you will, that during this dead period, Amazon was able to introduce the closed-system Kindle, creating another kind of pressure on publishers to fall in line with an Internet giant.

As the product develops, academic libraries will be able to license not only their own digitized works but everyone else’s. Michigan’s faculty and students will be able to read Stanford and California’s digitized books, as well as Michigan’s own. I never doubted that we were going to have to pay rightsholders in order to have reading access to digitized copies of works that are in-copyright. Under the settlement, academic libraries will pay, but will do so without having to bear large and repeated transaction costs. (Of course, saving on transaction costs won’t be of much value if the basic price is too high, but I expect that the prices will be reasonable, both because there is helpful language in the settlement and because of my reading of the relevant markets.)

This agreement may make Google the eBook leader ahead of Amazon.com although we will not know this until the dust settles. That eventuality however, will be exactly what publishers will be looking for as they have become increasingly concerned about the position and power of the Amazon eBook (Kindle) offering.

The agreement really focuses on in-copyright but out-of-print books. That is, books that can’t normally be copied but also can’t be purchased anywhere. Highlighting these books (which are numerous; most academic books, e.g., are out-of-print and have virtually no market) was smart for Google since it seems to provide value without stepping on publishers’ toes.

What does this mean? Not much right now other than a very long and protracted lawsuit is finally grinding to a close. While I have a very different idea on digital goods, free culture (thanks Lawrence Lessig) giving things away for free (Thanks Internet), this might just be the break that will help authors, publishers, and Google find that elusive middle ground.

the google blog says this:
> If a reader in the U.S. finds an in-copyright book
> through Google Book Search, he or she will be
> able to pay to see the entire book online.

in general, that’s a positive development. but…

it will be _very_ interesting to see exactly how much
google and those authors/publishers have decided
that us “readers” will have to _pay_ to see each book.

somehow i don’t think we should have been left out
of that part of the negotiations… so i’ll be curious…

-bowerbird

Jim Carlile

I posted this on the Lessig blog already– kinda lazy about retyping it, but there are some issues that Google still has to resolve, like,

a) they are hoarding many public domain books in violation of their scanning agreements, and,

b) in order to abide by the same, they are going to have to review the copyright status of all pre-1964 works, and release them in free full-view scans, outside of their paid subscription model. This means MILLIONS of books they cannot charge for:

4.3 Google use of Google Digital Copy. Subject to the restrictions set forth herein, Google may use the Google Digital Copy, in whole or in part at Google’s sole discretion, subject to copyright law, as part of the Google Services. Google agrees that to the extent that it or its successors use any Digitized Selected Content in connection with any Google Services, it shall provide a service at no cost to End Users (1) for both search and display of search results and (2) for access to the display of the full text of public domain works contained in the Digitized Selected Content. To the extent portions of the Google Digital Copy are either In the public domain or where Google has otherwise obtained authorization, Google shall have the right, in its sole discretion, among other things, to (a) index the full text or content, (b) serve and display full-sized digital images corresponding to those portions, (c) make available full text of content for printing and/or download, and (d) make copies of such portions of the Google Digital Copy and provide, license, or sell such copies (including, without limitation, to its syndication partners). For all other portions of the Google Digital Copy, Google may index the full text or content but may not serve or display the full-sized digital image or make available for printing, streaming and/or download the full content unless Google has permission or license from the copyright owner to do so; Google instead may serve and display (1) an excerpt that Google reasonably determines would constitute fair use under copyright law and (2) bibliographic (e.g., title, author, date, etc) and other non-copyrighted information. In the event that Google has received a license or other permission from the applicable copyright holder to use in-copyright works in the Google Digital Copy, Google may use those works in any manner permitted under the terms of such license.

I think that the third and fourth sentences are the tip-off as to what they’ve been wanting to do from the beginning– license OOP material and sell it. That means this new settlement really just formalizes what they’ve already had in mind all along– this whole book scanning program was never about altruism and “knowledge.”

But the second sentence is the interesting one, I think, especially (2), where all public domain works are to be made available on their site in full-view, and for free. So far, they haven’t always been doing this, and they’ve been holding to a strict pre-1922 cut-off date as well, when determining a book’s PD status.

In my view, in order to adhere to the agreement with U.C. at least, Google is going to have to research the copyright status of all 1922-1964 books, and immediately place those that were not properly renewed into their PD list. This could account for a HUGE number of new PD scans, post 1922. Like, millions.

Otherwise, if they don’t do this, libraries like UC that subscribe to a future institutional copy scheme with Google Books could be put into the position of having to buy back post-1922 PD books that should be free per their own agreement!

It’ll be fun to watch how this pans out.”

http://dltj.org/ Peter Murray

I’ve started reviewing the court documents from a librarian and library technologist perspective, and have been posting my findings at http://dltj.org — most notably at this point is an evaluation of the Notice of Settlement at http://dltj.org/article/gbs-settlement-2/. Most notably to a general audience, it seems like the Settlement does not cover books published or distributed after January 5th, 2009.

John Crutcher

The Association of American Publishers is, of course, a party to the settlement and not a distintereted observer by any means, but I commend their page on their publicly available website, particularly the “Joint FAQ” link. http://tinyurl.com/5ela38

Frances Grimble

Speaking as a copyright holder, I’m appalled that Google is being allowed to get away with violating the law by scanning books with unexpired copyrights, then forcing the holders of the rights to agree to a settlement the vast majority of them had no hand in negotiating. The “class” Google and the Authors’ Guild claim this settlement applies to, includes not only every single author holding a US copyright, but every author in every country that signed the Berne agreement. If these rights holders—and the ultimate rights holder is usually the author rather than the publisher—do not hear about the settlement before the opt-out deadline, they are legally considered to have accepted it, according to the terms of the settlement. There’s no way a great many of them will hear about it, so Google will have seized control of a large amount of copyrighted material and make large profits from it.

According to the settlement, Google is only paying $60.00 for each book whose copyright it has violated, which is ridiculous given the amount of time and money required to write and produce a book. However, anyone who wants better compensation has to take legal action, probably to opt out of the settlement entirely and file a separate lawsuit.

A book being merely out of print does not mean it’s unavailable used, let alone that it’s rare. Many out-of-print books are later reprinted or published in revised editions, and sell well. The fine print also says in the future Google gets to declare a book “commercially unavailable” and seize use of it if it is out of print for only a year. Once Google is marketing the book, it may well become impossible for the rights holder to sell it anywhere else. Google is likely to make books very widely available, and what publisher wants to lose all those sales they would have made without Google’s competition? Google also reserves the right to declare print-on-demand books “commercially unavailable” via criteria unspecified in the settlement.

There’s no altruism here. Google could have set up a publishing arrangement where rights holders voluntarily submitted their copyrighted work, and many of them would have. But that would not have allowed Google the quick domination of the publishing industry they have positioned themselves for. Nor would it have allowed Google to make money from a vast number of works not voluntarily submitted, as they can now do according to the settlement.

After spending 25 years as a professional writer and editor and usually, not receiving anything like decent remuneration for my work, I am also appalled at the increasing cultural attitude that I should labor unpaid, while others who earn comfortable incomes themselves are somehow entitled to use my work for free. I call this “one-way socialism.” I need an income to pay for my housing and groceries—and my business expenses—just like non-writers. Now Google also wants to make money from my work without my permission.

There is nothing illegal or unethical in scanning genuinely public domain works, as defined by copyright law. However, I have downloaded a number of them from Google Books and I am very disappointed with the quality. If all those blurred, crooked, missing, and finger-photo’d pages are going to be our culture’s best record of public domain works, it’s not much of a service.

http://www.legalmatch.com/ Roy

I’ve read that the Google Books settlement would have allowed access to premiere university libraries like the one at Harvard. Do you know if this is still going to be the case given the recent conclusions in the settlement? I agree that providing access to books is a noble idea, it just needs to be done properly. Thanks!